Google Book Scanning Case Dismissal Being Appealed

The Guild's appeal comes five months after it lost the earlier decision to Google last November in a New York courtroom. In his decision, U.S. Circuit Judge Denny Chin dismissed the lawsuit filed by The Authors Guild and several individual authors, ruling that he "accepted Google's argument that its scanning of more than 20 million books, and making 'snippets' of text available online, constituted 'fair use' under U.S. copyright law," according to an earlier Reuters report. Chin's 30-page ruling countered allegations by the plaintiffs that Google's book scanning processes harms publishers and authors.
"Google does not sell its scans, and the scans do not replace the books," Chin wrote in his decision. "While partner libraries have the ability to download a scan of a book from their collections, they owned the books already—they provided the original book to Google to scan.
"Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion," Chin continued in his ruling.
Instead, wrote Chin, "In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books."

Google began digitally scanning some 20 million books back in 2004 so that Web searchers could find sections of them in searches, according to an earlier eWEEK report. The practice was quickly and vehemently opposed by critics, who argued that the practice is copyright infringement without payment. The battle has been in the courts since 2005, with at least two proposed settlements coming and going since 2009. The case was heard again this past September, which resulted in Chin's latest ruling.

Google lawyers have consistently argued that the fair-use provision of the Copyright Act shields it from liability for infringement. Google had argued that the materials are an extension of fair use, while opponents argued that the scanning amounted essentially to theft of the materials.
Google faced more than $3 billion in potential damages if it was found guilty of scanning the materials illegally.
The first proposed settlement came back in 2008 between Google and opponents, but Chin ultimately rejected it, according to a previous eWEEK report. Chin, who was also the judge in that case, ruled at the time that the proposed agreement would give too much power to Google at the expense of competitors. The U.S. Justice Department said the deal might violate antitrust and copyright law, which prompted Google to revise that original settlement in November 2009.

Another settlement attempt came in September 2011, but it again did not succeed. Google and the plaintiffs had been at the bargaining table since March 2011, when Chin struck down a deal that would let the search giant scan and store millions of "orphaned" works. Orphaned works include titles that are out of print and whose authors can't be found or are unknown. Chin said then that the deal "would give Google a de facto monopoly over unclaimed works" and deemed it unfair to rights' holders whose copyrighted works would be served online without their permission.